In this action, Martinez claimed the Tim McGraw song Everywhere was a copy of his song Anytime, Anywhere, Amanda. The lower court dismissed his claim, and he appealed. The 6th Circuit upheld the dismissal as Martinez’s claims were based on unsupported “speculation or conjecture.” And while the news media broadcast headlines like, “Tim McGraw sued for $20 million,” and “McGraw’s Stolen Song” the facts of this case reveal the lengths people can go to try and make a claim.

In a copyright action the two things to prove are ownership of the original work, and that the work was copied. This is key, as there is no copying in an independent creation. If two artists write songs that are very similar, yet neither knows of the other’s work, then there is no copyright infringement. As rarely is someone caught outright, copying is generally proven by showing 1) access, and 2) substantial similarity between the two works.

While Martinez lost on multiple points, this case is an interesting relation of the extremes people will go to in trying to connect the dots. The district court found there was no substantial similarity between the works (upheld) but the key discussion relates to Martinez’s attempts to show access. Because McGraw could not have copied something he had never heard, Martinez had to show that somehow his song made it to McGraw (or his writers).

Martinez attempted to do so in a failed version of “seven degrees of separation.” As a quick summary according to Martinez, he recording the song in July or August 1996. The song was never released, never offered for sale, no one had a print of the lyrics. It was performed only in South Texas. In the fall of 1996 he mailed a tape of the song to his friend Susan Tomac. Tomac says she then gave the tape to David Bartly, who had a photography studio in Tennessee. Bartly died in 2012, before he could be deposed for the case. (Note, the case was filed in 2005, so there was 7 years available to do this.) Martinez claims Bartly’s ex-wife states Bartley “could have” passed the tape on to Karen Phillips or maybe Lee Greenwood, but this is admittedly “guessing.” Martinez then claims both Bartley and Phillips passed the tape to Lee Greenwood, or Lee Greenwood’s attorney Ralph Gordon. Then somehow, since Greenwood and Reid (one of the authors of the Tim McGraw song) had met once 12 years prior, and not seen each other sense, the tape got back to Reid who is credited as an author of the McGraw song.

Disregarding the required element of time travel, the district court politely refers to this as “attenuated chains of hypothetical transmittals.” The 6th Circuit states, “the hypothetical transmittals fail to support a reasonable inference that any Defendant or associate of any Defendant received a copy of Anytime, much less that Wiseman or Reid, the alleged infringers, heard or had a reasonable opportunity to hear Anytime and copied it before they co-wrote Everywhere.”

As the court points out:

“[a]ccess may not be inferred through mere speculation or conjecture.” Blige, 558 F.3d at 493; see also Ellis, 177 F.3d at 506.

The songs may be similar (the district court and Court of Appeals held they were not) but that is beside the point. A copyright claim requires someone copying. Two people with independent creation does not give rise to a copyright claim. And access needs to me more than a fanciful game of seven degrees of separation. Though not discussed, under Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) this case approaches the standards for an award of attorney fees to McGraw.

Of course relevant headlines do not sell, so this all gets dumbed down to “Tim McGraw’s Stolen Song” for the masses.

One of the most active parties in enforcing against BitTorrent downloads is Malibu Media, who releases adult content under the X-Art brand. While the standard mantra is BitTorrent is largely innocent and about ‘file sharing,’ this is like calling a typhoon ‘rain sharing.’ The level of content distribution is far from trivial or inconsequential.

In a recent filing in the Southern District of Ohio (1:14-cv-493-TSB, Dkt. 9), Malibu Media has let the court see under the hood at some of what is going on. Depending on how you look at the data, Malibu has records of about 12,000 distinct IP addresses in Ohio sharing and distributing their content through BitTorrent. Based on this number, when compared to the population of Ohio (~12 million), there is evidence that approximately 1 in 1000 people in Ohio are ‘sharing’ X-Art’s media through BitTorrent.

Malibu Media is by all accounts one of the most active copyright enforcement litigants in the United States with some sources reporting they filed 40% of all copyright suits in 2014. But with 172 suits in Ohio, and 12,000 known infringers, Malibu’s prolific filing of complaints is addressing less than 2% of the people stealing their work. Some may complain there are too many copyright suits filed (usually those who are being sued / have been caught) but the ratio of infringers to lawsuits is a disproportionate 70:1. For any other kind of theft, 1 in 70 would lead to the calls for more enforcement, not complaints about excessive enforcement. If one in 70 cars were stolen, or if your car were stolen every 70 days, there would be a national call to action.

With respect to damages claimed and awarded, many may argue the $750.00 statutory minimum for copyright enforcement is draconian, but a one-month subscription to Malibu Media’s web site is $29.95. If Malibu Media’s claims are against 1 in 70 infringers, then the numbers pencil out to damages of at least $2,000 per defendant just to break even ($29.95 x 70 = $2,096.50). In light of the extensive nature of the problem, the $750.00 statutory minimum starts to seem very reasonable.

In 2013 Indiezone filed suit against a number of former employees claiming they stole certain intellectual property. An arbitration agreement would have required the parties to arbitrate instead of bring their claims in court. To avoid arbitration Indiezone brought in co-plaintiff eoBuy which was not a party to the arbitration agreement. The only problem was eoBuy did not exist and was apparently fabricated for the sole purpose of avoiding arbitration.

In January several of the defendants filed to dismiss eoBuy and argued that arbitration was proper. Rather than concede that eoBuy did not exist Indiezone dug the hole deeper and began to fabricate evidence and make other claims that eventually unraveled under scrutiny. The result was severe sanctions from the court.

It is important to note that Indiezone may have had valid claims against the defendants but in their efforts to avoid arbitration they lied to the Court and as a result their claims were denied.

Judge Chhabria did not pull any punches:

The Court finds that the plaintiffs submitted multiple misleading and false declarations and fraudulent documents… Bad faith of this degree easily supports an award of sanctions under the Court’s inherent powers. See Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991).

The Court went on to find both the plaintiffs and their counsel liable for costs and fees,

Counsel for the plaintiffs also participated in this bad faith conduct. Despite having been put on notice that eoBuy did not exist … [counsel] continued to file the plaintiffs’ bad faith motions and to support and adopt [Indiezone’s] misrepresentations in his own declarations and through motion and oral argument. [Counsel’s] misrepresentations to the Court far exceed the ethical bounds of advocacy and constitute bad faith. At a minimum, [counsel] has been reckless regarding the truth of his representations to the Court. [Counsel’s] actions throughout this litigation also demonstrate his intent to unreasonably and vexatiously multiply and manipulate the proceedings, including filing numerous motions to amend, filing numerous requests for extension of time, and failing to abide by court order on multiple occasions. Sanctions are therefor appropriate … under the Court’s inherent authority, as well as 28 U.S.C. § 1927.

This case is also dismissed with prejudice, pursuant to the Court’s inherent power, because the plaintiffs have “engaged deliberately in deceptive practices that undermine the integrity of judicial proceedings” and “willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice.” Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) (quoting Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 347, 348 (9th Cir. 1995)). Dismissal is warranted in a case such as this one where a party has knowingly submitted false and misleading documents. See Combs v. Rockwell Int’l Corp., 927 F.2d 486, 488-89 (9th Cir. 1991). Moreover, consideration of the five factors discussed in Leon warrants dismissal. See Leon, 464 at 958. The public’s interest in expeditious resolution of litigation and the Court’s need to manage its docket both support dismissal, because the sanctionable conduct has unnecessarily prolonged this case and wasted a tremendous amount of the Court’s time. Given the Court’s finding of bad faith and issuance of sanctions under its inherent authority, a showing of prejudice to the defendants is not needed (although the defendants have certainly labored under the misconduct of the sanctioned parties). Nursing Home Pension Fund v. Oracle Corp., 254 F.R.D. 559, 564-65 (N.D. Cal. 2008) (explaining that “a district court need not consider prejudice to the party moving for sanctions” when acting pursuant to its inherent authority).

Hawaii now joins the majority of states which allow joined BitTorrent copyright enforcement cases. In early 2013 the Prenda scam was uncovered where a group of attorneys were revealed to be using shell games to operate a honeypot scheme for people that downloaded porn via BitTorrent. In response courts across the nation clamped down on all BitTorrent cases as a precaution. As the courts have become better educated they are recognizing the Prenda scam was unique and that joined BitTorrent copyright litigation is the most efficient and best way to enforce copyrights, especially in light of the massive scale of BitTorrent related infringement.

Single party cases are still being filed in many jurisdictions, but some studies put the average costs and attorney fees for copyright litigation at $300,000 to $2,000,000+ *. (Note, this is a National average for all copyright cases and many cases are resolved for significantly less.) However the courts, and many wise defendants, recognize that by permitting joinder costs can be reduced dramatically, permitting rights enforcement and allowing cases to be economically resolved for less than 10% of the national average.

Without any motion before the court, Judge Tharp has addressed the issue of BitTorrent swarm joinder and the ruling of AF Holdings, LLC v. Does, 1-1058, 752 F.3d 990 (D.C. Cir. 2014), and has found that though in extreme cases joiner may not be proper, in the matters of the pending cases relevant to his ruling joinder is indeed proper for BitTorrent copyright claims, at least for initial discovery. The D.C. Federal Circuit is the only appellate court to address this issue and in the case of 1000+ defendants, spread out over five months, the court found that joinder was not proper. Judge Tharp, on his own (sua sponte) rejected the strict D. C. Federal Circuit analysis and the common argument that would require all parties be in a swarm a the same time, and found that such a requirement:

…appears to overlook the fact that the pieces of the file that Doe 1 distributed directly to other Does who were in the swarm contemporaneously with Doe 1 were in turn subsequently distributed by them to the Does who joined the swarm after Doe 1 left it; in the context of a swarm, there is only a single digital file that is distributed among the members. Thus, it cannot be said that subsequent transfers of that file are even entirely “independent” of the earlier transfers; all of the transfers involve the same file and the earlier transfers of the pieces of that file facilitate the later transfers. Moreover, nothing in Rule 20 suggests that joinder requires a direct transaction between every defendant.

…

…permitting joinder among noncontemporaneous swarm participants does not seem novel or extreme; the law governing joint ventures and conspiracies, for example, permits plaintiffs to proceed against groups of defendants who engaged in a cooperative endeavor to facilitate an unlawful object whether or not all of the members of the group took part in all of the actions of the group and without regard to when the members joined the group.

The judge acknowledged:

Though there are strong arguments on both sides of this issue, entering a sue sponte finding of misjoinder of the Doe defendants would, in the Court’s judgment, be inappropriate at this early stage.

…

Though the plaintiff may issue subpoenas to determine the Doe defendants’ true identities, the plaintiff is prohibited from publishing the defendants’ identities in any way without leave.

…

… the Court finds that allowing the defendants to proceed by pseudonym is appropriate at this preliminary stage of the litigation, when no defendant has been put on notice of this suit. Once defendants have received such notice, the Court will revisit the issue of whether the names of the defendants in this matter may be publicly disclosed.

While the proponents of BitTorrent piracy may have expected the D.C. Circuit to end all joined lawsuits nationwide, this is clearly not the case as several districts including those in Texas, Colorado, Illinois and Washington have subsequently made clear that joined cases are going forward.

Recreational marijuana sales, still illegal under U.S. Federal law, cannot be protected by Federal Trademarks.

The Federal Government, with a blind eye to the legality of recreational marijuana sales and use in many states, refuses to recognize any legal sales or protect the branding of any such sales by registering associated trademarks. (But they will accept the tax revenue.) At the same time those involved in the legal sale of marijuana products, unable to file for trademarks, are also increasingly the subject of trademark infringement suits. Such is the case of the recently filed Trans-High (High Times Magazine) v. Reimers, et al. case of Eastern Washington. 2:14-cv-00279 (E.D. WA. Aug. 25, 2014).

In the complaint, the publishers of High Times Magazine claim the defendants’ operation of a legal marijuana vendor doing business as High Time Station infringes their registered trademarks. Legitimacy of the complaint aside, it needs to be acknowledged that the plaintiff is seeking to enforce rights against defendants that are excluded from the system. This degree of inequality and unfair protection is something that will eventually be acknowledged. With the current “corporations are people” position of the law (right or wrong) an equal protection argument seems ripe. Why should a company (or person) be subject to the protections of a law (trademark) when they are denied access to that same law?
As the economy of legal recreational marijuana sales grows, expect the trademark system to quickly reverse course and allow the registration of associated trademarks. Also expect there to be a growing number of Plant Variety Protection (PVP) filings as people begin to legitimize the protections of their strains such as “Purple Diesel Bus” and “Brazilian Brain Bomb.”

After a long (6 year) drawn out battle related to patent infringement in the oil drilling industry, it all goes away because of a lie. In the Southern District of Texas, Judge Ellison has thrown out all claims by plaintiff Tesco in a rare application of the inherent powers of the court.

In short, Tesco claimed it had a patent on a piece of oil drilling equipment and sued Weatherford (and others) for infringement. One of the key issues related to an old brochure. There was some question as to whether or not the document contained an image of the patented invention and therefore invalidated the patent. (Publication of the invention more than one year before filing invalidates a patent.) To get through the point, Tesco’s attorney told the court:

The animators that actually did the brochure and that actually did the rendering are prepared to swear and testify that this is not [the] invention; and in fact, there is no doubt it’s not [the] invention.

. . .

[T]hat is what [the illustrator is] going to say; and he’s going to say unequivocally that this is not it. And so is [the other illustrator] who also worked on the rendering. Two individuals, same rendering, both will say that.

However there were irregularities with the case and even after the jury found in favor of Tesco, at least in part, the judge allowed post-trial discovery to look into certain matters, including some possible misconduct by Tesco’s attorneys. In the post-trial proceedings it was revealed that Tesco’s counsel blatantly misrepresented notable facts related to the brochure and the illustrators had no idea whether or not the invention was depicted in the brochure.

While facing nine (9) separate motions, Judge Ellison cut to the heart of the case and decided that all pending motions were moot and decided that due to the blatant fraud on the court by Tesco’s counsel Tesco’s claims were dismissed with prejudice. At the time of the court’s ruling, no pending motion on the docket appears to have been seeking this specific relief.

After first acknowledging the Supreme Court has warned that “[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion,” Judge Ellison went on to make clear:

…the Court has an independent obligation to safeguard its own integrity and those of the proceedings before it…the Court reluctantly concludes that Tesco’s representations amount to an abuse of the judicial system; they are most certainly “acts which degrade the judicial system.” citing Amsted Indus. Inc. v. Buckeye Steel Castings Co., 23 F.3d 374, 379 (Fed. Cir. 1994)

…

…not every lawyer who lies to a court will be caught, so when such deliberate and advantage-seeking untruthful conduct is uncovered, the penalty must be severe enough to act as a deterrent. Awarding attorney’s fees – even if they were to be paid by Tesco’s counsel alone – is insufficient. citing Hull v. Municipality of San Juan, 356 F.3d 98, 102 (1st Cir. 2004)

…

Just as with witnesses testifying truthfully under oath, the proper administration of justice depends upon counsel being completely forthright with the Court.

Judge Ellison has invited defendants to submit motions for attorney fees, and as he has already made clear that the sanction of dismissal is warranted because an award of fees would not be enough, it is anticipated that there will be a notable award of fees.

The simple lesson is that if you lie about what you have and how you got it, then odds are you do not have anything. While this case was about patents, similar rules apply to copyrights and trademarks.

In the law, as with most things, lying, cheating and stealing are (still) bad.

A part of a series of notes exploring BitTorrent copyright defenses that sound good, but do little more than churn or run up a bill. See Part One: Assumption of Risk

In Chinese they have a phrase zhilaohu (紙老虎) which translates to paper tiger. This phrase stands for something that seems fierce and powerful, but is really no more threatening than a piece of paper. The paper tiger is about imagery and illusion that is only meant to fool the gullible. In the context of false defenses raised in response to claims, I call such defenses paper fences.

A stock or form paper fence defense that shows up in many of the answers filed both by attorneys and people appearing on their own (pro se) is the de miminis act, or claiming that the amount that was copied was less than the whole or so small that is does not matter and there is no violation. This sounds good, but on analysis, fails in the realm of BitTorrent copyright claims. Most significantly, a de minims defense starts off by essentially stating, “I did it but….”

First, a brief review of what constitutes a de minimis act: A de minimis act is one that is so minor as to be inconsequential. This sounds like a good thing to say if you want to argue you only copied a little bit of a movie. But with an understanding of what it means and how it is used in the law the “paper” aspect of this defense becomes apparent. Traditionally de minimis is used for things like in the context of how long a defendant can be detained in a traffic stop, such as to ask one or two more questions, making a short delay a de minimis length of time. United States v. Stepp, 680 F.3d 651, 662 (6th Cir. 2012). Or in the case of a claim of littering when the act involved two matches. People V. Feldman, 342 N.YS.2d 956 (N.Y Crim. Ct. 1973). It is also a standard applied pollution or contamination regulations where the contamination is so minor as to be a non-issue, especially in light of new technology that allows the detection of just a few molecules. Ober v. Whitman, 243 F.3d 1190 (9th Cir., 2001).

To the extent de minimis has been applied in the context of copyright, it has generally been in the analysis of similarity, or as a component of fair use. These have been identified as copying that has occurred to such a trivial extent as to fall below the quantitative threshold of substantial similarity, known as trivial copying, and as might be relevant as a component of a “fair use” defense. Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 74-75 (2d Cir.1997).

In essence, the de minimis defense is applicable when the question is how similar the copy might be from the original, such as how much Song-A sounds like Song-B, or as one part of the “fair use” defense, which had a multi-part analysis that includes the quantitative amount copied as one of the factors. (Fair use is a whole other issue, and for other reasons beyond this note similarly not applicable to BitTorrent copyright infringement.)

In the context of BitTorrent, a de minimis or “partial copy” assertion are simply not valid defenses. As the U.S. Supreme Court held, “[A] taking may not be excused merely because it is insubstantial with respect to the infringing work…. `[N]o plagiarist can excuse the wrong by showing how much of his work he did not pirate.'” Harper & Row v. Nation Enters., 471 U.S. 539, 565, 105 S.Ct. at 2233, quoting Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 56 (2d Cir.1936). Thus, there is no de minimis (or the like) defense to BitTorrent infringement.

Granted, a de minimis type argument may be applied to argue for the statutory minimum of $750.00 in damages, but this is not an affirmative defense to liability. And the costs to raise the defense in an answer and deal with the associated motions will likely be thousands of dollars, paid for by the defendant.

As a reminder – The defense to a BitTorrent copyright infringement claim is the defense that the defendant did not do it and was not involved in any way. The rest is often just paper fences and, “a tale told by an idiot, full of sound and fury signifying nothing.” – Macbeth.

In Chinese they have a phrase zhilaohu (紙老虎) which translates to paper tiger. This phrase stands for something that seems fierce and powerful, but is really no more threatening than a piece of paper. The paper tiger is about imagery and illusion that is only meant to fool the gullible.

In litigation, there seems to be a growing trend to the use of affirmative defenses which are really just paper tigers, these might be called paper fences. These paper fences are not real defenses, just extra words that someone can throw on a page to justify their bill. Sometimes I wonder if even the people that file them on behalf of their client’s believe the false hope these paper fences represent.

Where these seem to be showing up more frequently are in the BitTorrent copyright cases. There are blogs and message boards where such things get shared and passed around among attorneys, and while everyone likes to share an idea, rarely does anyone share its failure. Someone dreams up an idea that sounds good, then word gets passed around and pretty soon everyone is adding the newest paper fence to his or her filings without paying attention to the rulings of the courts.

Assumption of Risk is one such paper fence that has no place in BitTorrent copyright defense. First, it is good to understand what the defense really means. An assumption of risk defense essentially states the plaintiff is involved in such risky behavior that it is expected that defendant will be reckless, as such the plaintiff accepts a possibility of injury.

Now look at why this does this not belong in a BitTorrent copyright defense or any copyright defense for that matter.

– Assumption of risk first dictates that the defendant injured the plaintiff. The argument is the plaintiff, whose rights were infringed knew or should have known people would try and copy their work. To its logical conclusion the defendant comes to court and says, “I did it, but they should have expected me to do it.” To allow an assumption of risk defense in copyright law would negate all copyright law.

– Assumption of risk is only valid against reckless conduct. A defendant will still be liable for any willful conduct. In BitTorrent infringement there is no reckless conduct. A defendant does not accidentally download a torrent file. All BitTorrent copyright infringement is willful.

There are other reasons, but suffice it to say assumption of risk has no place in copyright infringement cases and is nothing more than a paper fence that sounds good enough only to be sold to client to justify a bill. Just a little research reveals that assumption of risk has never prevailed as a copyright defense. As Judge Hegerty recently ruled, “Because an “assumption of risk” defense does not apply to copyright infringement claims, this defense cannot succeed as a matter of law and should be stricken.” Malibu Media, LLC v. John Butler, 1:13-cv-02707, (D. Col. Aug. 13, 2014).

As I review these cases look for future notes on other paper fences that often show up in BitTorrent Copyright cases including: Failure to State a Claim, De Minimis Infringement, and the counter claim of Non-Infringement, all of which seem to be making the rounds and do little more than run up costs and fees.

There really is only one defense to the copyright infringement claim, and that is the defense that the defendant did not do it and was not involved in any way. The rest and often just paper fences and, “a tale told by an idiot, full of sound and fury signifying nothing.” – Macbeth.

No surprise that Kanye has won the Kanye v. Coinye cryptocurrency case. While the names are similar and there is no doubt that Kanye would be expected to go after something so close and associative, contrary to media spin this is not a case of a big media star going after the little guy who just happens to be too close for comfort. In this case it appears that from day one all efforts by the defendants were to create a Kanye West associated digital currency and trade on his name and likeness, including putting his image on the representations of the coins.

From the Compliant:

Defendants have willfully and admittedly traded upon the goodwill and notoriety of Kanye West, one of the most famous entertainers and brand names in the world.

…

Defendants have publicly stated that: (i) they “chose to represent Kanye because he is and always has been a trendsetter, and he’s always keeping things unique;” and (ii) they were “really not sure how Kanye [was] gonna react.” Moreover, Defendants cowardly remained anonymous because “[Kanye West] really isn’t someone we want to piss off’ and that they would “love if Kanye named dropped `Coinye’ . . . We don’t want to pay him off to name check us, but it’d be sick if he does so.” Defendants also boldly asserted that “Anarcho-capitalism is coming, it can’t be stopped. Whether it has a symbol that looks like a dollar, a dog, or a cartoon picture of a rapper, it’s all the same thing.”

Of course the biggest insult might be equating Kanye West to a dog or a cartoon, but legally that was a secondary issue at best.

Initially the case had some extra buzz by naming Amazon.com as a defendant, but they were quickly dropped. The complaint is worth reading, linked below. A few of the defendants entered into consent judgments, but the majority were defaulted as per the order.